The Court said, relying on a 1902 MA statute, that under MA law truth does not constitute a defense to libel if the alleged libel was made with “actual malice.” And, the Court decided, “actual malice” means nothing more than, well, being mean.
[The plaintiff] argues that the term “actual malice” refers to actual malevolent intent or ill will. Though we initially concluded otherwise, on rehearing we now agree…. [T]he legal context supports construing “actual malice” as “ill will” or “malevolent intent.”
So, according to the Court, if you disseminate true information about a (non-public) person with “ill will,” you can be successfully sued for libel.
Whoa.
A couple of observations. First, as I noted above, this is not a “public figure” libel case, which is the sort we’re most familiar with, nor is it a case in which a “matter of public concern” is being discussed. Most people who sue for libel do so because they are in the public eye and believe they’ve been treated unfairly by a newspaper or some such thing; libel cases may also arise where a newspaper article discussing a matter of public concern mentions people who do not qualify as “public figures.” The standards for such libel cases (which have been discussed by the US Supreme Court and the MA Supreme Judicial Court, and in which truth is an absolute defense) are not affected by this case.
Second, the Court seems not to have considered any constitutional implications of its decision. That may well be because the parties did not raise any constitutional issues in their briefs; nonetheless, it’s a strange approach for the Court to take. Imposing any kind of liability for disseminating true information strikes me as constitutionally problematic in any circumstances, and I’m surprised that the Court ignored the issue, instead kicking it down the road to the next case. It’s all well and good to hew to the standard practice of not considering arguments not raised by the parties, but to willfully turn a blind eye to an obvious constitutional problem seems like, at best, a waste a judicial resources. The constitutional issue will have to be considered sooner or later — most likely sooner.
Third, it strikes me as very foolish indeed for the Court to have decided this case based on an interpretation of a very old Massachusetts statute without first asking the Mass. Supreme Judicial Court for help. The SJC’s rules allow it to answer important questions of MA law arising in cases in other courts “which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of this court.” The proper interpretation of the term “actual malice” in MA’s 1902 libel statute would certainly qualify, and I cannot understand why the First Circuit chose to hazard a guess (and incidentally turn modern libel law upside-down) rather than simply ask the SJC — especially since the First Circuit issued this opinion on rehearing, meaning that it had already gotten it wrong once.
Very, very strange. Look for the defendant to file a request for rehearing or rehearing en banc, possibly accompanied by a motion for certifying the question to the SJC.
What was the offending statement for which the plaintiff is suing?
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p>Why is a federal court weighing in on the application of a state law?
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p>2. Diversity case. Federal courts do this all the time.
The employee had cheated on his expenses (i.e. embezzled).
Can’t be true.
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p>After all, truth is often thought to require impartiality, and the considered judgment of time.
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p>Problem solved!
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p>;-)
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p>Ironic, no?
Just another Internet-distributed libel.
I’m trying to rationalize the decision. The First Circuit is typically very good and this was a balanced panel. What comes to mind is something like the Autoadmit cases — i.e., you can’t post all over the internet that someone has herpes. I could also see it applying to allegations and statements that might not lend themselves to true-false resolutions. Remember this does not apply at all to public figures or matters of public concern.
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p>Still, I see how this will create line-drawing problems. And the beauty of modern libel law is that so much can be disposed at the summary judgment stage — preventing years-long litigation and shakedown settlements. Indeed, this decision all but announces that these libel suits will always go to juries, stating “where “motive and intent play a leading role, summary judgment should not be granted””.
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p>Maybe the legislature should do us all a big fat favor and repeal/clarify that provision?
David, I am not sure I see why the statutory question is as difficult as you suggest. As I read your comment, your real concern is with the notion that truth may not be a defense to libel, as it is in most jurisdictions. But the statute seems quite clear on that point. Are you suggesting that the First Circuit should have certified to the SJC the question whether the defendant’s acts met the “actual malice” standard of the statute? Surely the SJC couldn’t say, or be expected to say, that under the statute truth is a defense even if there is actual malice, for the statute says precisely the opposite.
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p>I think the more interesting question here is the constitutional question. Parenthetically, in public figure and public interest cases, I have long thought that First Amendment absolutism has mangled our libel law unnecessarily. First Amendment absolutism fails to take seriously the idea that harm to one’s reputation can be as serious as bodily harm or injury to physical property. It seems to me that the view that the First Amendment shields libelous statements regarding matters of public concern unless the statements are untrue and made with malice undervalues many people’s interest in their good names, especially in an age where we define very broadly the public’s interest and right to know.
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p>As you point out, Noonan involves a plaintiff who is not a public figure, and an issue of no public concern. In my view, any First Amendment argument must be substantially weaker in such a case than in a public interest case. I haven’t thought about these issues in any great depth for years and years, but it seems to me that if we’re willing to recognize a tort like invasion of privacy, in which truth is not a defense, then there’s not really much of a First Amendment argument in a case like Noonan, involving a private figure’s interest in his reputation.
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p>So I guess I give Noonan a qualified thumbs up. Take that, ACLU!
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p>TedF
it can’t be that blindingly obvious, since the panel apparently was persuaded that it had gotten it wrong the first time. And the SJC has been very cagey about whether the old statute can be applied at all in the modern era — it keeps whittling it down, but it has never addressed the question here: private figures and matters not of public concern. The Court’s quite unconvincing reason for not considering those cases:
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p>
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p>Uh … nobody told us there might be a constitutional issue in a libel case if the “libel” is true. So, uh, we’re not gonna worry about it, and we’re gonna assume that the SJC wouldn’t worry about it either. Even though there are plenty of indications to the contrary.
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p>Lame.
Do we really want liability every time someone intentionally embarrasses someone else? Isn’t that pretty much what this boils down to? No need to show invasion of privacy or “intentional infliction of emotional distress” — just “ill will”?
was that Noonan is, at least at first glance, persuasive about what Massachusetts law is. I didn’t argue that Massachusetts law on this subject is great policy, though I did say that I didn’t see much of a constitutional objection to it.
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p>On the policy front, I think my feelings about this issue are probably out of the mainstream. I do think the law undervalues reputational interests, which, as I say, can be more important to a person than interests in his person or his property in some cases. It seems to me that the general rule in intentional torts is that you can’t injure someone else unless you have a privilege to do so, and I don’t see why this doesn’t apply to reputational injuries. I see why a true statement about a public figure or a matter of public concern should be privileged even though it causes harm. I’m less clear on why that is the right outcome where there is no public concern at stake.
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p>It may or may not be a coincidence that my views on this are influenced by the Chafetz Chayim, a nineteenth-century rabbi who wrote an important book on the Jewish law of slander, or “Lashon Hara” (“an evil tongue”). Truth is no defense to a charge of lashon hara, because, among other things, you’re not “loving your neighbor as yourself” when you speak ill of him, even if what you say is true. There is a quote I like from the Talmud: “for three transgressions one forfeits his portion in the world to come: murder, adultery, and idol worship, and lashon hara is equivalent to all three.”
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p>Does this have any relevance to our common law? Well, maybe not. But it provides some perspective on why we might want to consider taking reputational injuries more seriously.
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p>TedF
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p>
though one that perhaps is more at home in shul than in court. (Plus, I don’t know the context, but really, equating murder with lashon hara? That seems a tad strong.)
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p>Look, I’m not saying that I think what Staples did was such a great idea, or that reputational injuries are trivial. Obviously they are not. But it’s one thing to disapprove of Staples’ actions, and another to impose legal liability for them. If we accept that there’s a difference between morality and legality, we also have to accept that there may be no legal remedy for some immoral or amoral acts.
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p>And what are the odds this decision is going to go bye-bye?